Opinion
No. CV02-0170977S
July 17, 2006
MEMORANDUM OF DECISION RE MOTION TO RESTORE # 130
The underlying action was commenced by the plaintiff as tenant, against the defendant, landlord, claiming personal injuries as a result of a fall down at the subject premises.
During the course of the litigation, the deposition of one of the plaintiff's treating physicians, Dr. Robert Wetmore, was noticed by the defendant and completed on August 11, 2004. The deposition took three hours. The defendant, however, refused to pay Dr. Wetmore the fee he requested for the deposition of $900 per hour.
The defendant filed a Motion to Determine Expert Fee, dated September 19, 2004, the nature of the motion being that the requested fee by Dr. Wetmore was unreasonably high.
The law office of Carmody Torrance filed an appearance on behalf of Dr. Wetmore and an Objection to the Defendant's Motion.
The motion and objection were heard by the court, Eveleigh, J., on October 12, 2004. As a result of the hearing, the court ordered the defendant to pay Dr. Wetmore a fee of $900 per hour for a total of $2,700 within 30 days of the order.
On October 13, 2004, the plaintiff withdrew the underlying cause of action, having settled the claim with the defendant. On November 1, 2004, the defendant appealed Judge Eveleigh's order of October 12, 2004 relative to the expert fee to the Appellate Court.
Meanwhile, Dr. Wetmore filed a Motion to Compel payment of his fee in the underlying action, dated November 29, 2004. This motion was argued before the court, Eveleigh, J., on January 10, 2005. The court, Eveleigh, J., denied the motion. The court in the transcript of the proceedings had several concerns. The first was that the appeal of the order of October 12, 2004 was pending before the Appellate Court at that time. In addition, the court was concerned that Dr. Wetmore was not a party to the underlying action. Finally, the underlying action had been withdrawn by the plaintiff and therefore, there was not a case pending before the court at that time. The Appellate Court dismissed the defendant's appeal on April 21, 2005.
Subsequently, Dr. Wetmore, through his attorneys, filed a Motion for Contempt against the defendant for failure to pay Dr. Wetmore's fee as ordered by the court. This court found that it lacked jurisdiction to hear the motion because the case had been withdrawn and therefore, there was not a cause of action before this court to entertain.
The result of this court's decision on the motion for contempt is the resulting motion to restore to the docket filed by Dr. Wetmore.
Dr. Wetmore moves to restore the case to the docket to enforce the court's prior order regarding payment of his fees. The defendant objects on the grounds that it is more than four months since the case was withdrawn and therefore, the court does not have the authority to restore the case.
In Rosado v. Roman Catholic Diocesan Corp., 276 Conn. 168 (2005), the Supreme Court concluded ". . . that the trial court retained continuing jurisdiction over withdrawn cases, . . ." Id., p. 223. The Supreme Court further found ". . . that the trial court acted within the scope of that authority in restoring the withdrawn cases to the docket." Id., p. 211. In Rosado, the Supreme Court found, that the trial court's inherent authority to revisit its prior orders allows the court to restore withdrawn cases to enforce those orders. The Supreme Court concluded that for the trial court to do so is not an abuse of discretion:
Finally, [i]n reviewing a claim of abuse of discretion, we have stated that [d]iscretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice . . . In general, abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors." (Citation omitted; internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 416, 857 A.2d 808 (2004).
Id., p. 225.
The Rosado decision by the Supreme Court was in keeping with the Court's prior decision of CFM of Connecticut, Inc. v. Choudhury, 239 Conn. 375 (1996) where the Supreme Court found that the question of whether a case should be restored to the docket is one of judicial discretion.
In Rosado, the trial court restored the case after more than eight months had passed from the withdrawal. Also, see Sicaras v. City of Hartford, 49 Conn.App. 771 (1997), where the Appellate Court found that the trial court had jurisdiction to restore a case to the docket eleven months after it was withdrawn.
The court also finds the case of A.I. Credit Corp. v. Gronski, Inc., Superior Court, judicial district of New Haven, Docket No. CV01-0452088 (March 11, 2003, Silbert, J.) most persuasive in this matter. In that case the court quoting from Byrd v. Leszcynski, Superior Court, judicial district of Hartford, Docket No. CV96-0564251 (August 25, 2000, Berger, J.) ( 28 Conn. L. Rptr. 88) stated, "[t]he plaintiff's tactical use of the withdrawal constituted an abuse of [its] privilege, especially [because the withdrawal] was used solely to avoid an order of the court, and it clearly has a prejudicial effect on the [defendant]." In this case the defendant tactically moved the court, Eveleigh, J., to rule on the amount that Dr. Wetmore should receive for testifying at the deposition. When the decision was rendered by Judge Eveleigh, which was unfavorable to the defendant, the defendant then tactically filed the withdrawal which it had received from the plaintiff upon settlement of the underlying action. The defendant's tactical maneuver was to circumvent Judge Eveleigh's decision on Dr. Wetmore's fees.
In view of the foregoing, the court grants the Motion to Restore to the Docket filed by Dr. Wetmore for the purpose of enforcing the previous order entered by Judge Eveleigh. The court schedules this matter to be heard on August 14, 2006 at 11:00 a.m. on the Special Proceedings docket for determination of whether the defendant remains non-compliant with Judge Eveleigh's order of October 12, 2004.